CONCORD — The role of The Humane Society of the United States in the seizure of 75 Great Danes from the Wolfeboro home of Christina Fay on June 16, 2017, was the focus of oral arguments before the state Supreme Court on Wednesday morning.
Fay’s attorney, Theodore Lothstein, is seeking the suppression of evidence gathered by Wolfeboro police. He said it was an invasion of Fay's privacy to allow Humane Society workers to take photos and videos of the police raid and then to use them on social media to raise $189,000, plus another $135,000 worth of in-kind donations for the private agency.
Senior Assistant Attorney General Susan McGinnis said no court has ever held that the later use of evidence violates personal privacy, and she pointed out that Fay’s home also served as a business location. Two of Fay’s employees shared photos of the conditions inside the home to form the basis for the police obtaining a warrant.
Fay’s lawyers appealed a decision by the Carroll County Superior Court to deny motions to suppress evidence in her trial.
The attorneys each had 15 minutes to make their arguments before the court on Wednesday morning. The issuance of search and arrest warrants were the main topics of the discussion and the source of questions from the four justices.
After a jury found Fay guilty of 17 of the original 19 animal cruelty complaints in February of 2018, the trial court sentenced Fay to concurrent 12-month sentences in the Carroll County House of Corrections, all suspended for five years. It also imposed fines of $34,000 plus $16,320 in penalty assessments; and ordered Fay to reimburse $18,682.88 to the town of Wolfeboro and $1.95 million to The Humane Society of the United States. The latter amount was subject to adjustment up or down, based on certain considerations.
Lothstein asked the court whether police should be allowed to bring a private entity into a private home without permission and then allow that entity to use the photos and videos for propaganda purposes, prejudicing the case before it gets to trial and making money in the process.
“If the state is right, that also makes it OK when a government agency tries to investigate a complex white-collar crime which takes a long time. What if the government said it’s too expensive so we’ll enlist private organizations to assist us, and instead of paying, say, if they find anything, there’s a lucrative market for prime information? There’s a unique public thirst to learn about people in high places.”
He said that, according to the testimony of Wolfeboro Police Chief Dean Rondeau, the HSUS agreed to carry the costs of removing and boarding the dogs, and the police agreed that the agency could use any of the photographs they took.
“They expressly authorized the use of those photos before the search,” Lothstein said. Yet, he added, the police did not disclose to the magistrate issuing the warrants that the evidence would be used for private benefit.
He contrasted that with State v. Chilinski, a case in Montana, which the prosecution used during Fay’s trial to argue that such agreements are allowed. The difference, Lothstein said, is that in Montana, the police obtained prior judicial authorization to enlist the help of the Humane Society. That was not the case in Wolfeboro, he said.
“Suppression of evidence is the proper remedy for these constitutional violations,” Lothstein argued.
McGinnis said the Humane Society was called in because the police were not equipped to handle such a large seizure and that the magistrate issuing the warrants was well aware from the application what the scope would be. Granting the appeal, she said, would create a “whole new brand of search and seizure to govern what happens after the fact.”
She reiterated that Fay’s home served as a business because she was importing Great Danes and adopting them out. Even if there was a privacy issue, she maintained, there are civil remedies for Fay to pursue.
“They’re trying to push a civil course of action to the criminal court,” she said.
She noted that the agreement between the town and the Humane Society did not even address “what happens after the fact” and said there’s no reason to suppress the evidence based on its future use.
“It’s about the search itself,” McGinnis argued. “Were the people reasonable? I’ve never seen a case based on post-trial activity.”
The justices probed the arguments with questions of their own: When does a wrong occur — when they use it on social media or before? Does the fundraising reduce the need for restitution? Is an invasion of privacy separate from the case itself, or an unreasonable expansion of the search? Did the social media posting reach more people than what they saw on WMUR? Does doing something for their own benefit taint what the Humane Society provided in the way of evidence?
McGinnis said that, by the time of the trial, HSUS had spent close to $2 million in the seizure and care of the dogs.
“They have the legal right to enter into an agreement that said we would bear the entire cost,” she said. “No court has ever said that the later use of evidence could be the basis to suppress evidence. No court has ever held that police need permission to get outside assistance. They did what they were allowed to do by law.”